One little-known fact is that federal prosecutors can put pretty much anything they want into an indictment or a sentencing memo. An indictment on drug-trafficking charges, for example, can, if the prosecutor wishes, contain a doctoral thesis’s worth of comprehensive history of post-Prohibition trafficking in all manner of contraband.

Why is that relevant? Here’s why: Special Counsel Robert Mueller can put as much information about Donald Trump’s activities into indictments and sentencing memoranda as he likes. He can even include emails or other records that document the claims in those documents.

And so far, that is exactly what he has been doing.

And what THAT means is that even if a Trump apparatchik at Justice decides he wants to bury Mueller’s final report, there already will be so much information in the public domain — court records like indictments and sentencing memoranda are almost always public — that any effort to bury Mueller’s final report simply won’t matter. Trump no longer has any leverage with which to prevent Congress and the public from knowing what he has been up to.

For Trump, it’s all downhill from here. He will die in prison in a diaper. The only question is whether he will do so here or in Russia. And lemme tell you, I and tens of millions of other Americans will laugh like hyenas when he does.

Sunday, November 25, 2018 8:46 pm

Conventional wisdom has it that the next presidential campaign starts the minute a midterm has ended. I would just remind everyone that conventional wisdom hasn’t had a good year. I would also remind everyone that important statewide races remain out there for Democrats at this writing in Georgia (SOS) and Mississippi (U.S. Senate), and that I would prefer that Democrats focus for the moment on those races.

That said, the next president of the United States probably already has started running, although no candidate besides Trump has announced for 2020. So how do we want to deal with this?

A lot of people are handicapping particular candidates right now, as people who follow politics always do at this point in the election cycle. I’m going to try a different approach. I would like us to think for a minute about what the next president’s going to have to do … and once we’ve got that nailed down, then we can talk about who’s out there who 1) might be able to do that and 2) is running, likely running, or at least being talked about seriously as a candidate.

Let’s start with the obvious: The Democratic candidate in 2020 has to win, must oust Donald Trump or defeat any other GOP candidate who might replace him before the general election. Any other result is unthinkable. The nation cannot afford four more years not only of Trump’s “governance,” but also that of Republicans in general. You hear that phrase a lot in political campaigns, but on issues ranging from global warming to Russia and national security to taxes and economics, it’s simply a fact.

Beyond that salient fact, however, the next president is going to have to do what I think is almost impossible: clean up enough of Trump’s messes quickly enough, plus make significant progress on his/her own policy agenda, before the 2022 midterms heat up, to give Democrats a solid chance of prevailing in those elections.

The reason is this: Historically, Democrats don’t show up in the midterms. In the past 40 years, they’ve done it in two consecutive midterms only once, 1982/1986. The particular reasons vary from one midterm to the next, but the common theme when Democrats hold the White House is that the party fails to make enough progress on its agenda to excite the rank and file and get them to the polls. Most recently, Dems didn’t show up in the 2010 midterms because party activists were upset Obama didn’t get them a rainbow single-payer unicorn or whatever, and Republicans took the House. In 2014, Democrats didn’t show up and Republicans took the Senate as well.

So here’s what I think the next Democratic president is going to have to do: 1) make significant progress cleaning up Trump’s mess and 2) make significant progress advancing his/her own policy agenda — and do all that by no later than the spring of 2022. Otherwise, history suggests, Democrats will face major reverses in the 2022 midterms.

So what’s that going to take? Again, I’m not sure it can be done at all. But of this I am positive: It cannot be done at all by a federal government virgin. No Michael Bloomberg. No Tom Steyer. No Michael Avenatti. No Oprah.

No, doing this will require a stone political pro with deep knowledge of how policy gets made in the federal government. It also will require someone with a long list of IOUs from congresscritters in order to get progressive legislation and confirmations moved and moved quickly.

Just off the top of my head, I can think of five U.S. senators who might meet those requirements. All are women. None is Bernie Sanders.

But I’ll save name-naming for another post. In the meantime, who do YOU think fits these criteria? I’ll be interested to hear.

Monday, November 12, 2018 6:43 pm

A lot of people know a whole lot more than I do about the creator of the Marvel Comics universe. I’ll just leave you with this observation: At a time when doing so was definitely not popular, he dared to respect his young audience enough to speak to them as adults.

I learned one of the most important moral lessons of my life when I was probably in kindergarten. I learned it from a story in a Spider-Man comic book. You probably know that story, too. It devastated me.

“And a lean, silent figure slowly fades into the gathering darkness, aware at last that in this world, with great power there must also come — great responsibility!”

(That’s not to say that a lot of mainstream media, such as USA Today, didn’t run stories repeating Carlson’s claim without independent verification. Of course they did, because anytime a Republican shrieks, “Antifa!” the MSM soil their drawers. Meanwhile, actual 18 USC 241 felony vote suppression is going on right out in the open in Georgia and Florida without the news media calling it what it is, but that’s a subject for another post.)

This anecdote illustrates the peril inherent in taking anything a Republican says at face value, particularly a Republican who literally gets paid to lie on television. You — whether you’re a journalist or a civilian — need to stop doing that. You need to critically question any such claim made by any Republican politician or pundit. And you need to punish news outlets who repeat such claims unquestioningly.

Sunday, November 11, 2018 8:37 pm

I’m seeing a number of people on Twitter claiming that Robert Mueller already has a ton of sealed indictments of Trump, Trump Jr., Fredo, Ivanka, Jared, etc., etc., etc.

I’m here to tell you: Anything is possible. But that is almost certainly bullshit.

First of all, there is zero direct evidence in the public record that any of that is true. None. And I dare you to prove me wrong. You can’t. (The zero-leak performance of the Mueller probe to date is a model of American law enforcement.)

Second, there is zero circumstantial evidence that any of this is true. Again, prove me wrong if you can.

Third, there is nontrivial circumstantial evidence that such claims are NOT true. Almost none of the Mueller indictments so far have been sealed. Those that were remained sealed only days before being unsealed. Sealing indictments for long periods of time appears, so far, not to be a technique on which Mueller is relying.

Now, as I said before, anything is possible. But the relevant question, given the evidence and Mueller’s modus operandi to date, is: What’s LIKELY?

The answer is:

1) Some people saying this stuff are trying to make themselves look/sound more in-the-know than they actually are. And, frankly, I don’t think it’s a coincidence that most of the people I see spouting this stuff on Twitter appear to be males in their 20s. They’re bullshitting to try to get laid.

2) Other people saying this stuff are trying to get low-information people’s expectations raised unjustifiably high so that when the inevitable disappointment comes, people will question the validity of the whole investigation. And I don’t think it’s a coincidence that a lot of THESE people have handles and follower counts that strongly suggest they are bots.

Understand, I’d freakin’ LOVE it if it were true. But I’ve spent enough time covering grand jury investigations to be very skeptical. And absent additional information, you should be, too.

The day after the midterms, Dolt 45 fired Attorney General Jeff Sessions and replaced him with acting Attorney General Matt Whitaker. Now, granted, no one is going to miss Sessions; a Twitter wag described the firing as the first time that Trump had taken down a Confederate monument. But Trump had been expressing frustration for a long time that Sessions had recused himself from special counsel Robert Mueller’s investigation into possible money laundering, obstruction of justice and conspiracy of the Trump campaign with Russia to interfere with the 2016 election. This move offers Trump an opportunity to take more direct control over the probe because Whitaker has not recused himself.

This isn’t quite the equivalent of Nixon’s Saturday Night Massacre, but it’s not good. Sessions had been so close with the Trump 2016 campaign that he had had to recuse himself from Mueller’s investigation, leaving it the hands of Deputy Attorney General Rod Rosenstein, who appears to have given Mueller both adequate leeway and adequate funding to do his job correctly. (In fact, given the financial forfeitures of some of those Mueller has convicted, the taxpayers are more than $10 million ahead of the game on this investigation to date, and there’s probably more profit where that came from. That money doesn’t go directly back into the investigation, of course.)

But Trump has made clear that oversight responsibility for the investigation now will rest with Whitaker instead of Rosenstein. It’s worth noting that when a Cabinet secretary leaves office, his/her deputy — Rosenstein, in this case — normally would be appointed acting agency head. That didn’t happen here. And that’s not good at all. Consider:

Whitaker in 2017 said he didn’t see anything wrong with Donald Trump Jr.’s meeting with Russians in Trump Tower:

Here’s the new acting Attorney General in July 2017 defending Don Jr.’s decision to take the Trump Tower meeting with Russians offering “dirt” on Hillary Clinton: “You would always take that meeting.”(via CNN) pic.twitter.com/qFAhnhSSJK

A number of Democrats already have called for Whitaker to recuse himself. Worse for Trump, Rep. Elijah Cummings, the incoming Democratic chairman of the House Oversight Committee, already has said his committee will be looking into Sessions’s firing. One possible result could be a criminal referral to the Justice Department for obstruction of justice.

(Also, the Mueller investigation aside, Whitaker appears to be just the kind of bigoted jackass that progressive and moderate voters indicated on Tuesday they’ve had enough of.)

Now, a lot of people are presuming that Whitaker’s appointment means that Trump intends to fire Mueller. And, legally, Trump could. The question that that would raise would be whether such a firing would constitute obstruction of justice, as Cummings is hinting. I am not a lawyer, and I don’t know that there’s a solid legal consensus on this issue, but I’ve seen social media posts from three or four lawyers unrelated to one another who have said that the firing would be evidence of the “consciousness of guilt.” (Remember, the whole reason there’s an obstruction-of-justice investigation in the first place is that Trump fired FBI Director James Comey in 2017 and said that he had done so because of the FBI’s Russia investigation. The uproar over THAT firing led to the appointment of Mueller as special counsel.)

However, if Trump wants to slow or halt the probe, he has other options.

He can have Whitaker eliminate the wide latitude Mueller currently enjoys under Rosenstein, restricting the probe to certain isolated subjects and people to ensure that Trump and those closest to him face no federal criminal exposure. (Possible state crimes are a whole ‘nother issue, of course, and Trump has no control over those investigations.) Or he could just direct Whitaker to, in effect, defund the investigation. A number of folks on Twitter jokingly suggested a GoFundMe for the Mueller probe if that happens. I’d support that, although that money, like the forfeitures already received, under the law could not go into the probe without having been appropriated by Congress, which the GOP-controlled Senate ain’t gonna do. (UPDATE: The appropriations bill for FY19 having already been signed into law, Mueller’s office is fully funded — at about $10 million — through next Sept. 30.)

But Trump has fewer options than he thinks.

According to the experts at the Lawfare blog, Whitaker might have to recuse himself whether Trump likes it or not:

The relevant Justice Department guideline is Section 45.2 of Title 28 of the Code of Federal Regulations, which states that “no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with” either “any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution” or “any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”

Although the regulations do not indicate that Whitaker’s public statements alone necessarily require recusal, Whitaker has other connections to people whose conduct is at issue in the matter. For instance, the regulations define a political relationship as “a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof.” Rebecca Ballhaus of the Wall Street Journal reports that Whitaker chaired the 2014 Iowa state treasurer campaign of Sam Clovis, who went on to serve in the Trump campaign and administration and who, Ballhaus notes, is now a grand jury witness in the Mueller investigation. The Des Moines Register reported Whitaker’s chairmanship of Clovis’s campaign during the campaign itself. What’s more, in a text message to Ballhaus after Whitaker’s appointment, Clovis wrote that he was “proud of my friend,” referring to Whitaker, raising the question of whether there is a personal relationship as well.

Also, Trump already knows that come Jan. 3, the House Oversight Committee will be looking into Sessions’s firing. And if Mueller gets fired, I would think that any of several House committees would be happy to subpoena him as an expert witness on Trump’s finances. Who knows where that could lead? (UPDATE: I’ve also seen it suggested that if Mueller gets fired, a House committee could hire him as an investigator.)

There even are a few current and incoming Senate Republicans willing to join hands with Senate Democrats long enough to protect the Mueller investigation, as Lawfare points out:

Mitt Romney, now the senator-elect from Utah, stopped short of calling for Whitaker to recuse himself, but said it is “imperative that the important work of the Justice Department continues” and the Mueller probe “proceeds to its conclusion unimpeded.”

The Maine Republican Susan Collins also stated that “it is imperative that the administration not impede the Mueller investigation,” adding that she is concerned that “Rod Rosenstein will no longer be overseeing the probe,” and that “Special Counsel Mueller must be allowed to complete his work without interference—regardless of who is AG.”

And GOP Senator Lamar Alexander said the Mueller investigation will continue.

I’ll admit I’m not optimistic. For one thing, even if all three stand their ground, the likeliest outcome of Tuesday’s election seems to indicate that Republicans would still hold a Senate majority, perhaps with the help of Vice President Mike Pence. For another, after the Kavanaugh confirmation, we now know what Susan Collins’s word is worth.

And, of course, there’s is the huge factor that Donald Trump consistently, almost predictably, acts against the best advice he gets and his own interests. Journalist Josh Marshall and novelist John Scalzi coined the term “Trump’s razor” for this phenomenon: Every option being otherwise equal, Trump will always make the stupidest possible choice. If I were a betting man, I wouldn’t often have lost had I consistently bet accordingly.

So I think Trump will fire Mueller and dare somebody to do anything about it. That puts Republican officeholders — at all levels — in a serious predicament, for, as Conor Friedersdorf observes in the Atlantic article linked above:

After Wednesday, elected officials in the Republican Party should have no doubt that Donald Trump will force them to choose in coming days, weeks, and months between loyalty to him and loyalty to the rule of law, between the public’s right to the truth and Trump’s efforts to hide it.

They’ve sworn an oath of loyalty to the rule of law. Let’s see how many of them meant it.

I spent hours in front of the TV with my list of key races and ballot issues and didn’t go to bed until late. When I did, I felt a modicum of relief: The Dems had done what they absolutely needed to do. They had pulled the country at least one step back from the abyss. But a lot of key races I’d targeted went red, and when I went to bed well after midnight, I was feeling a lot more relief than excitement. Kind of “meh,” in other words.

My wife, on the other hand, went to bed around 10, saying, “Let’s just wait and see what’s under the tree tomorrow morning.” At the time, the returns in were largely from Trump country, and I wasn’t feeling so great about things. The Blue Wave, from what I could see, largely hadn’t materialized.

And then I woke up today. And started reading. And, well, the longer the day went on, the more good news started trickling in. And, long story short, had I done what my wife did, I’d have gotten the same good news she did without all that stress.

And there was a lot of good news.

The first thing we learned was that the Democrats had taken the House and, with it, the specific power of subpoena and the general power to hold a largely lawless administration accountable. That HAD to happen if we were not going to proceed farther down the same road Germany traveled in the 1930s. And praise God, it did.

Not only that, we picked up a number of governorships, although the big prizes in Georgia and Florida remain contested for the moment and it looks like, win or lose, Georgia Secretary of State Brian Kemp will have been allowed to at least try to steal his own governor’s race. That can never be allowed to happen again, in Georgia or anywhere else.

We also learned that a lot of small miracles can happen overnight. Lucy McBath, whose valiant effort to oust the despicable Karen Handel in the Georgia Sixth looked DOA at midnight, now appears to have pulled through. Same with Joe Cunningham in the S.C. First against Katie Arrington, whose concession speech has to be seen and heard to be believed: She’s a narcissist to rival Trump, and I don’t say that lightly.

We learned that this election was even more of a referendum on Trump than a lot of people had thought. And I learned this because our six-term Republican sheriff, who faced a Democratic challenger with some nontrivial baggage, lost. Nobody around here, and I mean nobody, saw that coming. He’d been a perfectly good sheriff for a long time — I didn’t like him personally, but with the possible exception of his high-speed-chase policy, which he finally agreed to change after a pursuit-induced wreck in which five people died, I couldn’t really point to anything wrong that he was doing professionally that would make people vote against him. The only thing I could think of to make that many people vote against him was his support for Trump.

That said, we also learned that sometimes all politics really IS local. Trudy Wade, perhaps the second-vilest human being in the N.C. Senate behind GOP leader Phil Berger, had spent the past few years shitting on Greensboro out of spite. Karma’s a bitch.

If you doubt that, ask Kim Davis, the Kentucky Republican who made national news by refusing to issue marriage licenses to same-sex couples after the Supreme Court legalized same-sex marriage a few years ago. One of the men whom she had tried to deny a marriage license ran against her and whipped her like a rented mule.

What else did we learn?

We learned, those of us who didn’t already know, that the Green Party is just a bunch of Republican tools. They may have cost Democrat Kyrsten Sinema the U.S. Senate race in Arizona — the vote totals for the Green candidate well outweighed the difference between Sinema and Republican incumbent Martha McSally. The Green candidate in the New York 19th was taking money from a big GOP donor while attacking the Democratic candidate from the left.

We learned that voters feel very differently about issues versus candidates. In Florida and Missouri, to name just two, voters approved progressive ballot measures by significant margins — but voted for the politicians who oppose those measures. Part of that might just be due to racism, particularly in Florida. But there’s something else there that Democrats need to tease out and address.

Speaking of Florida, after the passage of Prop 4, which restores voting rights to most felons who have served their time, we learned that the Florida electorate could look very different, and much more Democratically inclined, in 2020. Prop 4 restores voting rights to about 1.5 million people. If Dems can get even 15% of those people to register and vote in 2020, they’ll find they have significantly more breathing room than they’re used to.

Speaking of voting, we learned that Americans are tired of vote suppression. A number of states passed initiatives to make it easier to register and vote and/or to prevent partisan gerrymandering. Here in N.C., unfortunately, we passed a state constitutional amendment requiring voter ID, but the measure is pretty much identical to a law the 4th Circuit overturned last year, with SCOTUS declining to hear the GOP appeal. I think the same thing will happen, and I am cautiously optimistic that there might not even be four votes on the high court to hear the same appeal again. The court traditionally has thought of itself as being a lagging indicator of political mood; what happened in this arena last night should signal to the court that, surprise, people want to vote, want their votes to count, and do not want to be messed with while voting, and that it should adjudicate accordingly because these are reasonable requests.

We learned that Republicans are perfectly willing to re-elect congresscritters who are under indictment (Chris Collins and Duncan Hunter) or who have been credibly accused of, at the least, knowing about the sexual assault of young men and refusing to do anything about it (Jim Jordan). Collins and Hunter, at least, are unlikely to serve their full terms.

We learned that gerrymandering remains a huge problem in North Carolina: “In Congress, Republicans won 50.3% of the overall vote but 77% of the seats (10-3). That’s the power of gerrymandering.” But in 2020, districts will have been redrawn so that Democrats will have at least a fair shot at real representation in that year’s U.S. House races.

We learned that after three and a half years, the national media largely still have not learned how to do their jobs without providing an echo chamber for Trumpian propaganda and bigotry. Funny how completely the refugee caravan, which had loomed so large on the media agenda these past few weeks, disappeared without a trace in news coverage this morning.

Here’s one huge national lesson, particularly for Democrats: Put the best people you can at the top of the ticket, and then contest every single downballot race. Every. Single. One.

Beto O’Rourke narrowly lost his battle to take the odious Ted Cruz’s U.S. Senate seat in Texas. But O’Rourke built a campaign so organic and powerful that although he didn’t quite win his own race, he’s probably responsible for winning dozens of others. Not only did the particularly stupid tool Rep. Pete Sessions get ousted, but so, also, did every Republican judge in Dallas and Houston. (One of them actually pitched a temper tantrum in court this morning.) O’Rourke’s campaign likely also is responsible for the fact that Democrats won 31 of 32 contested Court of Appeals races, taking 17 seats from GOP incumbents. That changes the legal/justice landscape of Texas overnight. And Texas was just one state; it’s now looking as if Stacey Abrams’s campaign for Georgia governor helped the aforementioned Lucy McBath across the finish line in the Georgia Sixth as well.

And we learned, finally, that we as a people can say, “Yes, Trump is crazy, but look at all this AMAZING stuff we can do if we don’t let ourselves be defined by his craziness and if we show up on Election Day.”

So, no, we didn’t accomplish everything we were hoping for this time last night. But we got a glimpse of what we can accomplish, if we all show up and all keep working. So everyone take a deep breath, and then let’s get to work on 2020 and the ongoing struggle to create a more perfect Union.

Monday, November 5, 2018 7:27 pm

I have no special insight and this is probably worth what it cost you, but here’s my prediction for tomorrow:

Dems pick up 32 in the House, lose 1 in the Senate, and take most or all of the tightly contested governor’s races, in addition to ousting a number of bad actors in sub-gubernatorial and legislative races. Beto O’Rourke will not win, and this shouldn’t be a surprise; Cruz’s Senate seat was ALWAYS going to be a tough target for any Democrat in that state.

Now here’s my prediction for Wednesday:

The GOP files suit in every close race they lose for federal office, so we might not know the outcomes of some for weeks. Mueller might drop a grenade or two, but no bombs right away. And Trump likely will start firing a lot of people and moving a few more to his 2020 campaign staff.

And that’s a best-case scenario. I think we’re also likely to turn up evidence of Russian interference and vote manipulation, although not necessarily immediately, and that nothing ultimately will be done about it. And even if the Republicans have a good night, I expect politically motivated violence on their part to increase.

And if the Dems don’t retake the House by a respectable majority, we’re all in a world of hurt.